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Fired U.S. Attorney David Iglesias Advises New Military Commissions

GUANTANAMO BAY — The first surprise of the first full-blown hearing of the military commissions under President Obama? The presence of David Iglesias, the former U.S. attorney from New Mexico purged by former Attorney General Alberto Gonzales for insufficient political fealty to the Republican Party. Iglesias, a reservist Navy captain, is serving as a legal adviser to the military commissions’ convening authority and a prosecutor here, although he’s not prosecuting the case of Omar Khadr, the Canadian citizen whose pre-trial hearing will begin Wednesday morning. “This is my most recent incarnation as a prosecutor,” he told the press corps here.

I asked Iglesias if the absence of a manual instructing officers of the court how to interpret the Military Commissions Act of 2009 — the statute governing this latest version of the commissions — would negatively impact Khadr’s hearing.”We expect the impact to be negligible right now,” Iglesias said, contending that the Act itself provides sufficient guidance for the case to proceed. “That being said,” he continued, “both sides expect there to be rules assigned very, very soon.”

That didn’t satisfy Jennifer Turner, a human rights researcher with the American Civil Liberties Union here to observe the proceedings. Federal courts have “years of experience” in interpreting statute and precedent and acting accordingly at trial, she said. The result of years of inventing the commissions, subsequent court challenges, legislative action, court challenges to that legislative action, and finally legislative responses to those challenges is that the officers of the commissions don’t have the same body of law to call upon to guide the proceedings. As Turner put it, “the problem is there are currently no rules for the military commissions.”

Well, not entirely. One rule currently in place is that whoever requests an action of the court has the burden of demonstrating the validity of its case. In Khadr’s case, his attorneys have asked the judge to suppress any statements he made during his post-2002 detention at Bagram and then Guantanamo Bay, contending that those statements describing his actions on the battlefield of Afghanistan’s Khost Provice are the result of torture, degrading treatment and coercion. So since Khadr’s lawyers filed a motion to suppress their client’s statements, “it’s their burden, by a preponderance of the evidence,” admittedly a low standard for demonstrating that Khadr’s treatment in detention represents what lawyers call the “fruit of the poisoned tree,” a legal doctrine stating that initial impropriety in extracting information renders whatever information ultimately results inadmissible in court.

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